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“All Citizens are Equal before Law and are Entitled to Equal Protection of Law”-Article 27 of the Constitution of the People’s Republic of Bangladesh

Issue No: 279
July 21, 2012

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Diplomatic protection of citizens in abroad: Lessons for Bangladesh

Syeda Nasrin

Photo: world knowledge.com

The term 'diplomatic protection' (henceforth abbreviated as 'DP') is often misunderstood by many as legal protection given to the diplomats as part of the diplomatic privileges and immunities. But, indeed, diplomatic protection has no connection with the privileges and immunities given to the diplomats i.e. officials for foreign affairs of a State. Diplomatic protection facilitates some sort of benefits and legal protection which may be legitimately expected by a citizen in abroad during necessity from his/her own State and which may legitimately be given by a State to its nationals in abroad under international law without prejudicing its and other countries sovereignty principle. Diplomatic protection attaches to the general people at large who can seek the facility of it only when he/she is in necessity at abroad. DP is an emerging principle playing one of the fascinating roles in international law attributing duties upon the 'sending State' (whom the person belongs to) and 'receiving State' (foreign country where the citizen of sending State is alien) and awarding benefits upon the person who can claim legal protection from his/her own State even after outside the territory of its own country; despite of its being so useful and human rights concern; claiming DP as legal right is yet to be recognized in international law. Being a product of soft law and embracing the branch of international principle the availability of DP depends both on the mutual understanding, co-operation and good faith of both the receiving and sending States who can facilitate diplomatic protection by enforcing mutual treat obligation between/among them. Though DP is considering very important in protecting the basic human rights to security of the citizen in abroad but the practice of DP is yet in lack behind to be frequent. DP also reminds the State having duty to take extra care of the citizens in abroad whether they are secured in abroad or not. It ties the direct nexus between the citizen and the State. DP is based on the principle that ill treatment with the aliens i.e. citizen of other States means ill treatment with the foreign country itself whom the alien belongs to. As State is bound to protect its own sovereignty and people is the center of legal and political sovereignty of a State; hence any ill treatment with the aliens is an ill treatment with the State which is not an accepted behavior under international law; therefore in every step State is under duty to protect its own legal sovereignty that ultimately belongs to the owner of political and ultimate sovereign authority i.e. people. There are certain international measurements recognizing DP. In the Mavrommatis Palestine Concessions case ([1924] PCIJ Rep, Ser. A, No. 2, at 12) the Permanent Court of International Justice held that 'a State is entitled to protect its subjects, when injured by acts contrary to international law committed by another State, from whom they have been unable to obtain satisfaction through the ordinary channels'. Article 3 of the Vienna Convention on Diplomatic Relations lists' (500 UNTS 95 (1961) as one of the functions of a diplomatic mission, 'protecting in the receiving State the interests of the sending State and its nationals, within the limits permitted by international law'. The Vienna Convention on Consular Relations 1963 (596 UNTS 261, Art. 5) asserts a similar role for consular officials. The consular relations treaty also sets out the responsibilities of receiving States in facilitating consular assistance of sending State nationals. Thus, Article 36 provides that consular officials are 'free to communicate with nationals of the sending State and to have access to them'. Nationals of the sending State have a reciprocal freedom to communicate with, and have access to, consular officers of the sending State. Moreover, upon request of that national, the receiving State must inform consular officials that a national is detained. In a provision at issue in two recent International Court of Justice cases (Avena and other Mexican Nationals (Mexico v. United States of America) [2004] ICJ Rep 128, 43 ILM (2004) 581 (31 Mar. 2004) and LaGrand (Germany v. United States of America) [2001] ICJ Rep 104, 40 ILM (2001) 1069 (27 June 2001), the receiving State must inform 'without delay' the detained alien of his or her right to contact consular officials. In Avena, the International Court of Justice concluded that this obligation arises immediately upon receiving State officials learning (or suspecting) that the detained individual is a foreign national. Once notified of the detention, consular officials then have a right to visit and converse with their national and arrange for his or her legal representation, unless refused by the national (Vienna Convention on Consular Relations, Art.36(1)(c)).

Bangladesh is one of the signatory of the Vienna Conventions 1961/1963. In light of the Preamble, Article 25, Article 145 of the Constitution of Bangladesh read with the United Nations Charter Bangladesh as a civil state in under international obligation to show greater compatibility to the international laws and instruments. To a major extent effective implementation of international law depends upon the frequent and common practice by the States among themselves. For large recognition of DP it is necessary to be largely accepted and commonly practiced by the States among themselves. Large acceptance of DP not only ties the nexus/close bond between the State and its citizens but also enhances mutual relationship of trust, understanding and co-operation among the States themselves. For claiming DP international law sets some pre-requisites including (i) there must be an international wrong attributable to the injuring State, (ii) discrimination made to the aliens, (iii) breach of minimum standard treatment with aliens, (iv) denial of justice (consisting of, or resulting from, denial of access to courts, or denial of procedural fairness and due process in relation to judicial proceedings, whether criminal or civil), (v) exhaustion of local remedies, (vi) genuine link/close nexus of nationality etc. Some of States like Israel, Germany, United Kingdom have already taken legal initiatives including setting up a separate body facilitating diplomatic protection to its nationals in abroad. Though Bangladesh signed the said treaties long before the present but no positive step has been taken yet for facilitating DP. Our Parliamentarians might have no knowledge or concern to pay heed on this issue. If Bangladesh would be cautious in facilitating DP to its citizens in abroad, perhaps the recent mishap (in terms of miscarriage of justice) in Saudi Arabia had not been occurred. By facilitating DP the sending State Government may call into question the accountability and minimum treatment devise of receiving State which the receiving State is bound to facilitate its aliens under international law and vice-versa. For meaningful expectation of DP one State shall facilitate DP to its alien within its territory. Despite of several deprivation, ill treatment and degrading handling with the citizens of Bangladesh in abroad our Government has no concern to protect our citizen in abroad though theoretically and constitutionally it is claimed that all powers of Bangladesh belongs to people as Republic of Bangladesh. This is not because of lack of legal framework under international law rather this is because of our Government's indifference and reluctance to protect our citizen from oppression, deprivation, ill treatment while they are abroad by providing best protection under international law.


The writer is a Legal Associate at Hoque& Associates.







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